CITATION: Daher v. Khanafer, 2016 ONSC 1387
COURT FILE NO.: FC-15-774
DATE: 2016/02/25
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Atallah Ahmad Daher, Applicant
AND
Dania Ahmad Khanafer, Respondent
BEFORE: Shelston J.
COUNSEL: Jodi R. Fleishman, counsel for the Applicant
Alexei Durgali, counsel for the Respondent
HEARD: February 11, 2016 (at Ottawa)
ENDORSEMENT
[1] On July 31, 2015, the respondent filed a motion returnable on November 17, 2015 wherein she sought an order requiring the applicant to post security for costs in the amount of $100,000 and an order for costs on a full indemnity basis. That motion was adjourned to February 11, 2016.
[2] On November 9, 2015, the applicant served a cross-motion returnable November 17, 2015 seeking an order dismissing the respondent’s motion for security for costs, an order that the applicant will have access with the child from March 14-18, 2016 from 8 a.m. to 4 p.m. each day in lieu of the child attending daycare on those days and an order for costs on a substantial indemnity basis. That motion was also adjourned to February 11, 2016.
[3] The issues before me are: whether to order the applicant to post security for costs in the amount of $100,000; to define the applicant’s access to the child the week of March 14, 2016; and costs related to these two motions.
[4] The issues of custody, access, child support and the other relief are set to proceed to a two-week trial commencing the week of May 16, 2016.
Background
[5] The applicant was born March 1, 1966 in Lebanon. He has been living in Spain since January 1990. He is self-employed as an interpreter. He indicates that he earns approximately $52,000 (Canadian) per year. The respondent alleges that he has admitted to earning the equivalent of $105,000 (Canadian) per year.
[6] The respondent was born November 20, 1979. She is a project manager with Correctional Service Canada in Ottawa. She earns an annual income of approximately $92,000 as indicated in her financial statement sworn on May 29, 2015.
[7] The parties are the parents of the child of the marriage Daniel, born December 14, 2013, currently two years and two months of age.
[8] In August 2012, the applicant travelled to Lebanon where he met the respondent’s family. The applicant travelled to Ottawa in November 2012 to meet the respondent. There was a discussion about the respondent sponsoring the applicant to come to Canada. The parties continued to communicate daily and met in March 2013 in Lebanon to discuss wedding plans.
[9] They married on March 16, 2013 in Lebanon.
[10] Ten days after the marriage, the parties returned to the applicant’s home in Spain where they remained until May 5, 2013, when the respondent flew home at Ottawa.
[11] From May 5, 2013 to the end of November 2013, the evidence of the parties differs on how often each travelled to the other’s residence either in Spain or in Ottawa.
[12] The parties do agree that the applicant travelled to Ottawa in December 2013 to be present for the birth of the child Daniel.
[13] The applicant returned to Spain in January 2014. The plan was that respondent and the child would follow the applicant to Spain which they did on February 27, 2014.
[14] What happened after the respondent travelled to Spain is in controversy. Both parties provide completely different versions of what transpired.
[15] The respondent alleges that the applicant assaulted her on March 3, 2014. The applicant denies the allegation. The parties do agree that they travelled to Lebanon on different dates in mid-March 2014 to try to work out their marital issues with the assistance of the respondent’s family.
[16] The parties reconciled their differences and the applicant left Lebanon on April 16, 2014 to return to Spain to resume his employment. The respondent was to fly back to Spain with the child on April 30, 2014.
[17] The applicant alleges that after he returned to Spain, the respondent threatened that she would not come back to Spain with the child unless he paid her ransom money. The applicant contacted the Spanish police.
[18] Further, the applicant alleges that in June 2014 the respondent and her brother entered into his home in Spain and threatened him with a knife, resulting in the arrest of the respondent and her brother. The applicant alleges that the respondent was charged with child abduction and that her brother was charged with assault.
[19] After the respondent was released by Spanish police, the respondent returned to Lebanon.
[20] On July 2, 2014, the applicant obtained a court order in Lebanon banning the respondent from leaving Lebanon with Daniel without the applicant’s agreement.
[21] Throughout this entire period of time the child continued to reside with the respondent in Lebanon. On August 4, 2014, the respondent attended a court in Lebanon to seek permission to travel with the child to Canada. This initial request was denied.
[22] On August 6, 2014, the respondent was successful in having the Lebanese court order reversed and she was granted permission to travel to Canada with the child. The evidence is contradictory as to why the ban was reversed.
[23] The respondent and the child left Lebanon and arrived in Ottawa, Ontario on August 8, 2014. They have lived in Ottawa ever since.
[24] On October 23, 2014, a court in Lebanon granted the applicant custody of Daniel.
Legal Proceedings
[25] The application filed by the applicant on April 13, 2015 seeks an order that he be awarded custody of the child and that the child’s primary residence and daily care and control be with the applicant in Spain.
[26] The allegations contained in the application have not been tested in a court proceeding. The allegations made by the applicant concern the best interests of the child and the reasons why the applicant should have sole custody. They raise concerns about the respondent’s conduct regarding the child, her relationship with the applicant and her alleged double life and they include allegations regarding the denial of access and the failure to return sponsorship funds and belongings.
[27] The respondent’s answer raises issues regarding her claim for sole custody of the child, supervised access by the applicant, child support, spousal support and various other claims for relief including a restraining order.
[28] On November 27, 2015 the applicant filed an amended application in which he amended his claim for sole custody to seek, in the alternative, joint custody, with the child’s primary residence being with the respondent in Canada and granting the applicant extended periods of access with the child during the summer, the year and holidays, to be exercised in Ottawa and/or Spain.
[29] The respondent filed an amended answer where in response to the amended application for joint custody, she alleges that this is a high conflict situation, that the parties have no ability to communicate, that the applicant has attempted to ruin the respondent’s life and reputation and that based on all these factors, a claim for joint custody is simply impossible.
FIRST ISSUE: SECURITY FOR COSTS
[30] The respondent seeks an order for security for costs against the applicant in the amount of $100,000 based on two factors set out in rule 24(13) of the Family Law Rules, O. Reg. 114/99, being that: (1) the applicant’s claim for sole custody and in the alternative joint custody is a waste of time or a nuisance and the applicant does not have enough assets in Ontario to pay costs; and (2) that the applicant resides outside of the province of Ontario.
Respondent’s Position
[31] The respondent’s first ground is based on the following:
(a) The respondent has been the main caregiver for the child since birth, whereas the applicant has had minimal contact with the child and the applicant’s case is brought for the collateral purpose of punishing the respondent by ruining her professional career and personal life.
(b) The respondent mother’s position is that this is not a case for joint custody. She argues that the applicant’s claim for joint custody is devoid of merit and there is no chance that the court will impose a joint custodial regime because is no communication. She says that the father’s case is really about access.
(c) The applicant has commenced three separate lawsuits against the respondent mother; has appeared on Lebanese TV to criticize her; and wrote an article on a Lebanese news website and has sent emails to the respondent’s employer accusing her of being a prostitute and a terrorist. Further, the respondent mother alleges that the applicant father’s focus is on the respondent’s character and not the child, that he has not developed a viable plan for the care of the child and that his pleadings do not focus on the child.
[32] With respect to the respondent’s second ground, she relies on the fact that the applicant lives in Spain and that he has no assets in Canada.
[33] The respondent’s position is that if the applicant has to pay costs and he refuses to voluntarily pay any cost award, his only assets that she can pursue are in Spain or Lebanon and if she seeks enforcement in those countries, it may be very difficult and very expensive to collect any costs.
Applicant’s Position
[34] The applicant’s position is that he has a valid claim for sole custody based on his relationship with the child; the respondent’s lack of attention to the child’s development; the respondent’s attempt to alienate the child; the concern about the child’s safety in the respondent’s care and allegations of sexual acts by the respondent in front of different men.
[35] In the alternative, he is seeking to have an equal say in all major decisions regarding the child and for that reason claims joint custody, with the primary residence of the child to be in Canada and with him being granted extensive access rights during the summer, holidays and any other times as the court sees fit.
[36] The applicant lives in Barcelona, Spain where he works as an interpreter. His financial statement filed in these proceedings indicates that he makes $52,800 per year and that he owns: an apartment valued at $30,000 in Spain; another apartment in Barcelona valued at $150,000 with a mortgage of $130,000; a home in Lebanon valued at $275,000, currently for sale to pay legal fees; and vacant land in Lebanon valued at $50,000. The total worth of the applicant’s real property is $505,000. His only debt is a mortgage of $130,000 on the apartment in Barcelona.
[37] The applicant’s position is that he does not have the ability to pay security for costs; that he would be prevented from participating in the litigation if an order was made; and that any such order would have a prejudicial effect on his position at trial. He asserts that he will pay any cost award made against him.
The Law
[38] Rule 24(13) of the Family Law Rules, O. Reg. 114/99 provides that the court has the authority to make an order for security for costs if certain criteria have been met. The order must be just and based on one or more of the following factors:
(a) A party ordinarily resides outside Ontario.
(b) A party has an order against the other party for costs that remains unpaid, in the same case or another case.
(c) A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
(d) There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
(e) A statute entitles the party to security for costs.
[39] Justice Pazaratz recently set out a four part test to apply on a motion for security for costs in Izyuk v. Bilousov, 2015 ONSC 3684, 62 R.F.L. (7th) 131, at para. 40:
a. The initial onus is on the party seeking security for costs to show that the other party falls within one of the enumerated grounds.
b. If the onus is met, the court has discretion to grant or refuse an order for security.
c. If the court orders security, it has wide discretion as to the quantum and means of payment of the order. Clark v Clark 2014 ONCA 175
d. The order must be “just” and be based on one or more of the factors listed in subrule 24(13). Hodgins v Buddhu [2013] O.J. No. 1261 (OCJ).
[40] Justice Pazaratz held at paras. 36-37 and 41:
The purpose of an order for security of costs is to protect a party from nuisance or irresponsible litigation, conducted without regard to the merits of the case or the costs likely to be incurred.
Security for costs is not intended as a roadblock for a person who has a genuine claim. In most instances the merits of a case should not be determined by a party’s inability to post security for costs.
A common theme in the case law suggests security for costs in custody and access cases should only be ordered in exceptional circumstances. The traditional rationale:
a. The best interests of children are always paramount.
b. Courts should not allow the outcome in children’s lives to be determined by a party’s financial resources, or inability to post security for costs.
c. Despite any deficiency or non-compliance by a parent, courts are better able to address sensitive children’s issues if both parties participate in the process and provide valuable information.
d. These concerns may be particularly applicable where custody or access are being determined in the first instance (as opposed to a motion to change, where the issues may be narrower, and where the moving party has the threshold onus to establish a material change in circumstances). [internal citations omitted]
[41] The fact that this case is about custody does not preclude an order for security of costs. Justice Quinn, in Stefureak v. Chambers, 2005 7890 (Ont. S.C.), stated that where there is an unmeritorious claim for custody, the court should order security for costs. At para. 18, he stated:
- It has been said that “only in the most exceptional circumstances [will] an order for security for costs be granted in respect of a custody application because the primary point in issue is the best interests of the child, and accordingly a parent should not be prevented from putting forth his views by means of an order for security for costs”. Again, I find myself in disagreement. Where it is shown that the position being espoused by a party “is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs,” it matters not that custody is the issue. And, if this means that the proceeding, effectively, is ended or stayed, so be it. I can think of no better case to stop in its tracks than an unmeritorious claim for custody. [internal citations omitted]
[42] Justice Hambly in Schumilas v. Porter-Schumilas (2009), 2009 55361 (ON SC), 76 R.F.L. (6th) 294 (Ont. S.C.), on the other hand, found the “waste of time” or “nuisance” ground for requiring a party to post security for costs was inappropriate in a custody case. He noted, at para. 21, “Surely it can never be a waste of time or a nuisance for a court to concern itself with the custody of a young child.”
[43] The courts have been very hesitant to prevent a party from participating in a family law case where the interests of children are at issue, as was stated by Justice Blishen in Parham v. Jiang, 2014 ONSC 3293.
[44] Finally, it must be “just” to grant the relief. Justice O’Connell in Hodgins v. Buddhu, 2013 ONCJ 137, considered the term “just” in the context of a custody case at para. 18:
- The mere satisfaction of one or more of the criteria under subrule 24(13) is not sufficient to entitle Ms Hodgins to security for costs. It also must be just for such an order to be made. Generally, courts do not wish to see the merits of a case determined by a party’s inability to post security for costs.
[45] The notion that the order must be “just” has been highlighted in other cases as well. In Ascani v. Robert, 2014 ONSC 450, at para. 59, Justice Kershman declined to order security for costs, relying on the passage from Hodgins v. Buddhu quoted above. He noted that the father resided in Quebec and that there had been an order for costs against him which remained unpaid (which was under appeal), but was not satisfied that the case was a waste of time or a nuisance. The Court ultimately found that it was “not an appropriate case” to order security for costs and dismissed that claim for relief.
[46] Similarly, in Dhillon v. Dhillon (2008), 2008 66140 (ON SC), 63 R.F.L. (6th) 317 (Ont. S.C.), Justice Ricchetti found that the claim had merit and concluded that it would not be just to award security for costs even though the party lived in India and had no resources in Ontario. His main concern in this case was that if he awarded security for costs, the likelihood was that the party would be unable to post such security and the father would thus obtain custody on an uncontested basis (at para. 88).
[47] In McGraw v. Samra, 2004 ONCJ 164, Justice Katarynych stated at paras. 23-24:
It is not the intention of any rule governing procedure in this court to deny access to the court by a person who has a genuine claim and is unable to satisfy an outstanding costs order or an outstanding order for security for costs due to circumstances beyond his control.
That said, the Family Law Rules read as a whole yield the unmistakable intention of the Family Rules Committee that litigants not be permitted to use the court as a playground. The “security for costs” remedy is but one of a number of remedies provided by the rules to stop a case in its tracks until the party veering outside of the rules brings himself or herself into line with them. It is a control on a blithe pursuit of another person in the courts without attention to the merits of the pursuit and the legal costs likely to be incurred by the respondent to defend the case. It is a remedy built on the principle that court proceedings are expensive and time consuming and not to be launched frivolously or without due regard to the impact on the responding party.
[48] Upon a review of the jurisprudence, I make the following observations:
(a) Security for costs of $30,000 was awarded on the basis that the father was not a resident of Ontario and had never been a resident in Ontario in the course of the litigation. The court also found that his joint custody claim emerged as a nuisance claim based on the fact that the father had filed a joint parenting plan that could not be implemented unless he was available in Toronto for the children, but the father had no legal status to remain in Canada and although he indicated that he planned on immigrating to Canada, no particulars were provided. (Wreggbo v. Vinton, 2013 ONCJ 250);
(b) Security for costs of $10,000 was awarded if the father proceeded with his claim for joint or parallel custody but no order for security for costs was made if he abandoned his claim for custody and only pursued expanded access. In this case, the court found that joint custody sought by the father was likely not to be ordered because the claim was “so devoid of merit that there is “good reason to believe” that it is frivolous and vexatious” (at para. 32). (Schumilas v. Porter-Schumilas);
(c) Security for costs of $1,500 was awarded if the father failed to deliver an amended witness list within ten days or exceeded a specified limit on trial time. The father had failed to pay numerous cost awards against him, failed to pay the child support ordered in the case, asserted a claim for joint custody that appeared to have little likelihood of success and planned to call 23 witnesses to support his claim for joint custody. In this case, the court balanced the competing interests at play and restricted the father to calling no more than the number of witnesses the mother proposed to call and to taking no more than the amount of trial time allocated to the mother. (Kaiser v. Wein, 2014 ONSC 752);
(d) Security for costs of $2,500 was ordered in an access proceeding as a pre-condition to the applicant proceeding with the motion authorized by the court. The court dismissed on a without prejudice basis the applicant’s claim for joint custody and equal timesharing and granted the applicant the right to file a fresh notice of motion seeking, amongst various claims for relief, an expansion of access but not equal timesharing. (Izyuk v Bilousov);
(e) If a motion for security for costs is brought after the commencement of a trial, the courts have shown a reluctance to make such an order. For example, such a motion was brought after 14 days of testimony in Stefureak v. Chambers, and on the 70th day of trial in J.F. v. V.C., 2001 CarswellOnt 1370. The motions were dismissed in both cases and in the former, the court indicated that the costs of the motion would be dealt with after the trial decision.
Analysis
[49] I agree with and adopt the four-part framework set out by Justice Pazaratz in Izyuk v. Bilousov, in considering a request for security for costs in a custody matter.
[50] The first part of the analysis requires that I determine whether or not the respondent has shown that the applicant falls within one of the enumerated grounds in in rule 24(13).
[51] The applicant’s claim is twofold. Firstly, he seeks an order for sole custody and primary residence of the child with the right to return to Spain. His allegations are that the respondent has attempted to alienate the child from the applicant, has attempted to interfere with the child’s relationship with the applicant and has exposed the child to danger. In the alternative, he is claiming joint custody to have an equal say in all major decisions affecting the child and seeks expanded access (but does not seek equal time).
[52] I reject the respondent’s contention that status quo will be a significant factor in this case. I do so because the applicant never consented to the child being removed from his care. Further, I reject the respondent’s position that the applicant will never receive sole custody of the child. That determination will be best left to the trial judge who will hear the viva voce evidence of the parties and be in a position to assess the parties’ credibility and to make findings as to what actually happened and what is in the best interest of this child.
[53] Further, the respondent alleges that joint custody would never be imposed in the circumstances because of a lack of communication between the parties. In my view, that issue as well should be left to the trial judge.
[54] In this case, I do not find that the applicant’s claim is devoid of merit, is a nuisance, is irresponsible litigation or is undertaken for an ulterior motive as alleged by the respondent. He is not in breach of any order for costs, disclosure or child support. He has actively attempted to accelerate this court case by seeking a combined case conference and settlement conference as well as an order expediting the matter to trial. He is paying child support.
[55] However, that is not the end of the analysis. It is conceded by the applicant that he resides outside Ontario. Consequently, the respondent has demonstrated that the applicant falls within one of the grounds enumerated in rule 24(13) and has therefore met the first part of the Izyuk v. Bilousov test.
[56] Having met the onus, the second part of the analysis requires the court to exercise its discretion as to whether or not to grant an order for security for costs.
[57] The jurisprudence indicates that it is only in exceptional cases that an order for security for costs will be made in a custody proceeding. That limitation has its own exception for cases where the claim for custody or joint custody is devoid of any merit. In those cases, an order for security for costs not only may be made but should be made.
[58] In this case, I find that the applicant’s claim has merit and requires a trial to decide what is in the best interest of this child.
[59] The third step of the framework states that if I were to grant an order for security for costs, I have a wide discretion as to the amount and means of the payments. In this case, the third step is not applicable.
[60] The fourth and final step is that I must determine whether the order for security for costs is “just” and based on one or more of the factors listed in subrule 24(13).
[61] Exercising my discretion, I dismiss the respondent’s motion for security for costs.
SECOND ISSUE: ACCESS BY THE APPLICANT FROM MARCH 14-18, 2016
[62] The applicant is seeking an order for unsupervised access to the child from March 14-18, 2016 from 8 a.m. to 4 p.m. each day. The respondent is opposed. I have reviewed the affidavit material filed by the parties and as I indicated during the oral argument, I am not prepared to agree that there will be unsupervised access.
[63] I am aware that there is a custody order in favour of the applicant in Lebanon and that there are criminal charges outstanding against the respondent in Spain for alleged child abduction.
[64] Counsel for the applicant indicated that the applicant could deposit his passport and that he would never abduct the child when facing a trial in Ottawa in three months. The respondent indicates that the applicant may have other passports in the name of the child and that if the applicant were to take the child to either Lebanon or Spain, she would be unable to have the child returned to Canada based on the existing order for custody in Lebanon and because of the outstanding criminal charges against her in Spain.
[65] This matter is to proceed to trial in three months at which time a judge will hear the viva voce evidence of the parties and the evidence of the witnesses, and will be in a position to make a decision based on the credibility of the parties and the totality of the evidence.
[66] At this stage of the proceedings, the evidence before me is restricted to affidavit evidence upon which, at this time, I cannot make findings of credibility. Further, I am not prepared to allow unsupervised access when there is a trial set to proceed in three months.
[67] The next question is the duration and location of the access. I am advised that the child naps between 1:30 and 3:30 each afternoon and consequently access in the afternoon would interfere with his nap. Further, the applicant’s position is that if he is to have supervised access, he cannot afford to have the child for eight hours a day.
[68] Based on the factors set out herein, I order that the applicant have supervised access to the child from 9 a.m. to 1 p.m. on March 14, March 15, March 16, March 17 and March 18. Such access is to be supervised by Ms. Linda Gervais and the respondent is not to be present during the access. The pick-up and drop-off for the access will be arranged by Ms. Gervais and her decision shall be binding on the parties.
[69] I further order that the applicant will pay for the supervision of the access, which costs approximately $75 per hour, and that the cost incurred by the applicant for the supervision shall be a credit to be applied to any retroactive table child support or contribution to section 7 expenses.
Costs
[70] As the applicant was the successful party, he shall provide his costs submission of no longer than two pages with a cost outline and any offers by March 8, 2016.
[71] The respondent shall provide her reply submission with the same conditions by March 18, 2016.
Shelston J.
Released: February 25, 2016
CITATION: Daher v. Khanafer, 2016 ONSC 1387
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: ATALLAH AHMAD DAHER, Applicant
AND
DANIA AHMAD KHANAFER, Respondent
BEFORE: Shelston J.
COUNSEL: Jodi R. Fleishman, counsel for the Applicant
Katherine Cooligan, counsel for the Respondent
ENDORSEMENT
Shelston J.
Released: February 25, 2016